Benard v. McDowall, LLC , 298 Neb. 398 ( 2017 )


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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    BENARD v. McDOWALL, LLC
    Cite as 
    298 Neb. 398
    Danielle Benard, appellant, v.
    McDowall, LLC, appellee.
    ___ N.W.2d ___
    Filed December 15, 2017.   No. S-16-946.
    1.	 Summary Judgment: Appeal and Error. An appellate court will
    affirm a lower court’s grant of summary judgment if the pleadings and
    admitted evidence show that there is no genuine issue as to any material
    facts or as to the ultimate inferences that may be drawn from those facts
    and that the moving party is entitled to judgment as a matter of law.
    2.	 ____: ____. In reviewing a summary judgment, an appellate court views
    the evidence in the light most favorable to the party against whom the
    judgment was granted and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    3.	 Negligence: Proof. In order to recover in a negligence action, a plaintiff
    must show a legal duty owed by the defendant to the plaintiff, a breach
    of such duty, causation, and damages.
    4.	 Negligence. The question whether a legal duty exists for actionable
    negligence is a question of law dependent on the facts in a particu-
    lar situation.
    5.	 Summary Judgment: Proof. The party moving for summary judgment
    has the burden to show that no genuine issue of material fact exists and
    must produce sufficient evidence to demonstrate that the moving party
    is entitled to judgment as a matter of law.
    6.	 ____: ____. A prima facie case for summary judgment is shown by pro-
    ducing enough evidence to demonstrate that the movant is entitled to a
    judgment in its favor if the evidence were uncontroverted at trial.
    7.	 Summary Judgment: Evidence: Proof. After the movant for summary
    judgment makes a prima facie case by producing enough evidence to
    demonstrate that the movant is entitled to judgment if the evidence was
    uncontroverted at trial, the burden to produce evidence showing the
    existence of a material issue of fact that prevents judgment as a matter
    of law shifts to the party opposing the motion.
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    BENARD v. McDOWALL, LLC
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    8.	 Landlord and Tenant: Liability. In Nebraska, the obligation of a land-
    lord to warn of a dangerous condition on leased premises is based on the
    Restatement (Second) of Torts § 358 (1965).
    9.	 ____: ____. As a general rule, in the absence of statute, covenant, fraud,
    or concealment, a landlord who gives a tenant full control and posses-
    sion of the leased property will not be liable for personal injuries sus-
    tained by the tenant or other persons lawfully upon the leased property.
    10.	 Landlord and Tenant: Contracts. In the absence of an express agree-
    ment to the contrary, a lessor does not warrant the fitness or safety of the
    premises and the lessee takes them as he or she finds them.
    11.	 Landlord and Tenant: Liability: Contracts. A lessor of land is sub-
    ject to liability for physical harm caused to his lessee and others upon
    the land with the consent of the lessee or his sublessee by a condition
    of disrepair existing before or arising after the lessee has taken pos-
    session if (1) the lessor, as such, has contracted by a covenant in the
    lease or otherwise to keep the land in repair, (2) the disrepair creates an
    unreasonable risk to persons upon the land which the performance of
    the lessor’s agreement would have prevented; and (3) the lessor fails to
    exercise reasonable care to perform his contract.
    12.	 Negligence: Liability: Contracts. Liability in negligence based on con-
    tract is dependent on the terms of the agreement.
    13.	 Landlord and Tenant: Words and Phrases. The word “repair” means
    to restore to a sound or good state after decay, injury, dilapidation, or
    partial destruction.
    Appeal from the District Court for Douglas County: Peter
    C. Bataillon, Judge. Affirmed in part, and in part reversed and
    remanded for further proceedings.
    Eric R. Chandler, of Law Office of Eric R. Chandler, P.C.,
    L.L.O., for appellant.
    Michael T. Gibbons, Aimee C. Bataillon, and Raymond E.
    Walden, of Woodke & Gibbons, P.C., L.L.O., for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Danielle Benard sustained injuries when she fell on the
    entry step of the single-family home (Property) she rented. She
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    BENARD v. McDOWALL, LLC
    Cite as 
    298 Neb. 398
    brought a negligence action against her landlord, McDowall,
    LLC. The district court for Douglas County granted sum-
    mary judgment in favor of McDowall, and Benard appeals.
    Although the district court did not err in the portion of the
    ruling in the summary judgment order with regard to Benard’s
    theory that McDowall was obligated to warn her of a dan-
    gerous condition on the Property, due to genuine issues of
    material fact, the district court erred with respect to Benard’s
    allegation that McDowall failed to repair and maintain the
    Property as required by the November 1, 2011, lease (Lease).
    We affirm in part, and in part reverse and remand for fur-
    ther proceedings.
    STATEMENT OF FACTS
    Benard seeks damages for injuries she suffered after fall-
    ing on the steps leading to the front entryway of the Property,
    which she leased from McDowall. The Property was located in
    Omaha, Nebraska.
    Benard’s complaint alleged that on September 23, 2012, she
    fell on the front concrete step of the Property and seriously
    injured her ankle and sustained damages. In her deposition,
    she testified that shortly before midnight, she was standing
    on the front step, concluding a telephone call, and when she
    stepped off the step, the heel of her shoe became stuck in a
    crack or gap between the front stoop and the front step and she
    lost her balance and fell to the ground. She gathered her cell
    phone and keys and reentered the Property. Her fall resulted
    in torn ligaments in her ankle, for which she ultimately under-
    went surgery.
    Benard presented evidence of ongoing disrepair of the front
    entryway despite orders from a city housing code inspec-
    tor to make repairs. Seven months prior to the execution of
    the Lease, in March 2011, a housing code inspector for the
    city of Omaha’s planning department (Planning Department)
    had inspected the Property and, on April 5, 2011, notified
    McDowall that occupancy of the Property was prohibited until
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    BENARD v. McDOWALL, LLC
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    repairs were made, because numerous violations made the
    dwelling “unfit for human occupancy.” These violations for
    “unsafe structure[s]” included the sinking front step, which
    needed to be “mud jacked,” or lifted, leveled, and stabi-
    lized. Benard claims that McDowall never notified her of the
    safety code violations or completed the repairs ordered by the
    Planning Department.
    The record also contains a “Section 8” Omaha Housing
    Authority inspection checklist completed prior to Benard’s fall,
    dated July 31, 2012. The checklist indicates that the property
    passed the Section 8 inspection for “Condition of Stairs, Rails,
    and Porches.”
    McDowall’s designated representative testified in his depo-
    sition that prior to renting the house to Benard, he completed
    all repairs required by the April 2011 Planning Department’s
    list of violations. He testified that he jacked up the step using
    a pry bar and some boards, reached underneath, and packed in
    dirt and gravel to bolster the step.
    In 2013, subsequent to Benard’s injury, the Planning
    Department again inspected the Property and concluded that
    no repairs had been made to the front steps and found that
    the front steps were still in an unsafe condition. The Planning
    Department housing inspector who conducted both the 2011
    and 2013 inspections stated in an affidavit that “[d]uring
    my inspection on April 5, 2013, I found that the previous
    violations noted in the March 2011 inspection, including
    the sunken front steps, had not been remedied, and that the
    property had been unlawfully occupied.” On April 8, 2013,
    the housing inspector issued an “Order to Vacate” regarding
    the Property.
    Benard testified at her deposition that she viewed the
    Property once or twice prior to entering into the residential
    Lease with McDowall. During her walk throughs, a McDowall
    representative named “Chris” informed her that he “still had
    to fix stuff on the house” and that he “was still working on
    the house.” Benard could not recall whether “Chris” informed
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    BENARD v. McDOWALL, LLC
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    her of particular repairs. However, she denied seeing any “big,
    glaring, red flags” at that time and she wanted to “hurry up
    and move.”
    The Lease contained provisions pertaining to safety and
    maintenance, excerpted below:
    9. Condition of Premises. Lessee stipulates that he has
    examined the demised premises, including the grounds
    and all buildings and improvements, and that they are,
    at the time of the lease, in good order, repair, and a safe,
    clean, and tenantable condition.
    ....
    20. Maintenance and Repair. Lessee will, at his sole
    expense, keep and maintain the leased premises and
    appurtenances in good and sanitary condition and repair
    during the term of this lease and any renewal thereof.
    In particular, Lessee shall keep the fixtures in the house
    or on or about the leased premises in good order and
    repair; keep the furnace clean; keep the electric bills in
    order; keep the walks free from dirt and debris; and, at
    his sole expense, shall make all requested repairs to the
    plumbing, range, heating[] apparatus, and electric and
    gas fixtures whenever damage thereto shall have resulted
    from Lessee’s misuse, waste, or neglect or that of his
    employee, family, agent, or visitor. Major maintenance
    and repair of the leased premises, not due to Lessee’s
    misuse, waste, or neglect or that of his employee, family,
    agent, or visitor, shall be the responsibility of Lessor or
    his assigns.
    (Emphasis supplied.)
    Benard testified that at some point after she moved in,
    she noticed that the front steps of the Property were sinking
    in and shifting. Because of the condition of the steps, she
    began to turn to the side and descend hip first. Benard testi-
    fied that during the year she resided at the Property before she
    was injured, several other friends and family members either
    tripped on or expressed difficulty navigating the steps. During
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    the year between her move-in date and her injury, Benard’s
    niece and twin nephews had tripped on the step, and her niece
    advised her that the step needed to be fixed. She testified that
    when a representative of McDowall would come to collect
    her rent, she would step outside her house and he would see
    her navigate the steps sideways, inferring that McDowall was
    on notice. Benard stated, however, that she did not explicitly
    notify McDowall of her ongoing issues with the step and land-
    ing or of any worsening of the condition.
    On February 17, 2014, Benard filed this negligence action
    to recover damages for the injuries she sustained in her fall.
    She alleged that McDowall was negligent in failing to prop-
    erly maintain and repair the front steps of the Property and for
    failing to notify Benard of the defect in the front steps. In its
    answer, McDowall alleged, inter alia, that Benard was negli-
    gent to a degree sufficient to bar or reduce her recovery.
    After the parties exchanged written discovery and took depo-
    sitions, McDowall moved for summary judgment. Following a
    hearing, the district court took the matter under advisement. In
    its written order, filed July 13, 2016, the district court deter-
    mined that there was no evidence that McDowall concealed or
    failed to disclose the condition of the steps and that the condi-
    tion was open and obvious. The court further found that the
    undisputed evidence showed that Benard was aware of the con-
    dition of the steps at the time she fell. Based on these reasons,
    the court granted summary judgment in favor of McDowall
    and dismissed the complaint.
    This appeal followed.
    ASSIGNMENT OF ERROR
    On appeal, restated, Benard claims generally that the
    district court erred when it granted summary judgment in
    McDowall’s favor.
    STANDARDS OF REVIEW
    [1,2] An appellate court will affirm a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
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    BENARD v. McDOWALL, LLC
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    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from those
    facts and that the moving party is entitled to judgment as a
    matter of law. Midland Properties v. Wells Fargo, 
    296 Neb. 407
    , 
    893 N.W.2d 460
    (2017). In reviewing a summary judg-
    ment, an appellate court views the evidence in the light most
    favorable to the party against whom the judgment was granted
    and gives that party the benefit of all reasonable inferences
    deducible from the evidence. 
    Id. ANALYSIS In
    this negligence action, Benard alleged that McDowall
    was liable because, as landlord of her rental home, McDowall
    failed to maintain and repair the front steps and failed to notify
    her of the defect in the front steps. McDowall denied the sub-
    stantive allegations and alleged that Benard was contributorily
    negligent. At the summary judgment hearing, McDowall pre-
    sented evidence that Benard was aware of the condition of the
    steps and the district court granted summary judgment in favor
    of McDowall generally based on its reasoning that McDowall
    had not concealed the danger.
    Although the district court did not err in the portion of
    the ruling in the summary judgment order with regard to
    Benard’s theory that McDowall was obligated to warn her of
    a dangerous condition, due to genuine issues of material fact,
    the district court erred with respect to Benard’s allegation
    that McDowall failed to repair and maintain the property as
    required by the Lease. We affirm in part, and in part reverse
    and remand for further proceedings.
    A pplicable Law
    [3,4] In order to recover in a negligence action, a plaintiff
    must show a legal duty owed by the defendant to the plain-
    tiff, a breach of such duty, causation, and damages. A.W. v.
    Lancaster Cty. Sch. Dist. 0001, 
    280 Neb. 205
    , 
    784 N.W.2d 907
    (2010). The question whether a legal duty exists for actionable
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    negligence is a question of law dependent on the facts in a
    particular situation. 
    Id. [5-7] The
    party moving for summary judgment has the
    burden to show that no genuine issue of material fact exists
    and must produce sufficient evidence to demonstrate that
    the moving party is entitled to judgment as a matter of law.
    Tolbert v. Jamison, 
    281 Neb. 206
    , 
    794 N.W.2d 877
    (2011).
    A prima facie case for summary judgment is shown by pro-
    ducing enough evidence to demonstrate that the movant is
    entitled to a judgment in its favor if the evidence were uncon-
    troverted at trial. 
    Id. After the
    movant for summary judgment
    makes a prima facie case by producing enough evidence to
    demonstrate that the movant is entitled to judgment if the
    evidence was uncontroverted at trial, the burden to produce
    evidence showing the existence of a material issue of fact
    that prevents judgment as a matter of law shifts to the party
    opposing the motion. 
    Id. In reviewing
    a summary judgment,
    we give the party against whom the judgment was entered
    all reasonable inferences deducible from the evidence. 
    Id. (citing Wilson
    v. Fieldgrove, 
    280 Neb. 548
    , 
    787 N.W.2d 707
    (2010)).
    This case involves a dangerous condition on the Property
    governed by the Lease. The parties argue many theories not
    repeated here which are not dispositive. The centerpiece of our
    analysis are the long-established obligations between a land-
    lord and a tenant with regard to (1) warning and (2) repairing
    dangerous conditions on leased premises.
    Landlord’s A lleged Failure to Notify
    Tenant of Dangerous Condition
    [8] In Nebraska, the obligation of a landlord to warn of
    a dangerous condition on leased premises is based on the
    Restatement (Second) of Torts § 358 (1965). The district
    court’s analysis was guided by a summary of the law reflected
    in a jury instruction, NJI2d Civ. 8.31, which, adjusted to this
    case, provides as follows:
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    BENARD v. McDOWALL, LLC
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    Before [Benard] can recover against [McDowall on
    her claim of failure to warn of the dangerous condition,
    Benard] must prove, by the greater weight of the evi-
    dence, each and all of the following:
    1. That there was a condition on the [Property] that
    involved an unreasonable risk of harm to [Benard];
    2. That [Benard] was the lessee . . . ;
    3. That [McDowall] knew or had reason to know of
    this condition and realized or should have realized the
    risk involved;
    4. That [McDowall] concealed or failed to disclose the
    condition to [Benard];
    5. That [Benard] did not know or have reason to know
    of the condition or the risk involved;
    6. That [McDowall] had reason to expect that [Benard]
    would not discover the condition or realize the risk;
    7. That the condition was a proximate cause of some
    damage to [Benard after she had taken possession of the
    Property]; and
    8. The nature and extent of that damage.
    At the hearing on summary judgment, McDowall produced
    evidence to show that it had no reason to expect that Benard
    would not discover the condition or realize the risk. In this
    regard, Benard’s testimony reflected that the condition of the
    step and landing were known to her family and friends, includ-
    ing young children; that she took precautionary measures due
    to the settling of the entryway; and that she understood that
    McDowall observed the worsening of the condition based
    on the viewing of the property’s exterior by representatives
    of McDowall.
    Benard argues on appeal that McDowall did not have reason
    to expect that she would realize the risk created by the steps.
    However, Benard is unable to point to any material fact in
    the record which shows the risk was concealed or difficult to
    appreciate that would prevent summary judgment in favor of
    McDowall on this theory. The district court did not err when
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    it ruled in favor of McDowall on this theory, and we turn to
    Benard’s remaining theory that McDowall breached its obliga-
    tion to exercise reasonable care in repairing and maintaining
    the leased Property.
    Landlord’s Failure to R epair and M aintain
    Property: Lease Provisions
    [9,10] Regarding a single-family unit, the law may be sum-
    marized as follows: “‘“As a general rule, in the absence of
    statute, covenant, fraud or concealment, a landlord who gives
    a tenant full control and possession of the leased property will
    not be liable for personal injuries sustained by the tenant or
    other persons lawfully upon the leased property.”’” Tolbert v.
    Jamison, 
    281 Neb. 206
    , 215, 
    794 N.W.2d 877
    , 885 (2011). This
    proposition is consistent with the Restatement, supra, § 356.
    We have also stated that “[i]n the absence of an express agree-
    ment to the contrary, a lessor does not warrant the fitness or
    safety of the premises and the lessee takes them as he or she
    finds them.” Tolbert v. 
    Jamison, 281 Neb. at 216
    , 794 N.W.2d
    at 885. See Roan v. Bruckner, 
    180 Neb. 399
    , 
    143 N.W.2d 108
    (1966), abrogated, Heins v. Webster County, 
    250 Neb. 750
    , 
    552 N.W.2d 51
    (1996).
    [11] Section 356 of the Restatement notes that there are
    several exceptions to the nonobligation of the landlord. One
    exception is contained in the Restatement (Second) of Torts
    § 357 at 241 (1965), which provides:
    A lessor of land is subject to liability for physical harm
    caused to his lessee and others upon the land with the
    consent of the lessee or his sublessee by a condition of
    disrepair existing before or arising after the lessee has
    taken possession if
    (a) the lessor, as such, has contracted by a covenant in
    the lease or otherwise to keep the land in repair, and
    (b) the disrepair creates an unreasonable risk to per-
    sons upon the land which the performance of the lessor’s
    agreement would have prevented; and
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    (c) the lessor fails to exercise reasonable care to per-
    form his contract.
    The landlord’s duty under a contract to make repairs as reflected
    in § 357 of the Restatement has been adopted in Nebraska.
    Zuroski v. Estate of Strickland, 
    176 Neb. 633
    , 
    126 N.W.2d 888
    (1964). See, also, Gehrke v. General Theatre Corp., 
    207 Neb. 301
    , 
    298 N.W.2d 773
    (1980); Reicheneker v. Seward, 
    203 Neb. 68
    , 
    277 N.W.2d 539
    (1979); Quist v. Duda, 
    159 Neb. 393
    , 
    67 N.W.2d 481
    (1954).
    [12] Liability in negligence based on contract is dependent
    on the terms of the agreement. The Restatement, supra, § 357,
    comment d. at 242-43, provides:
    Since the duty arises out of the existence of the contract
    to repair, the contract defines the extent of the duty.
    Unless it provides that the lessor shall inspect the land to
    ascertain the need of repairs, a contract to keep the prem-
    ises in safe condition subjects the lessor to liability only
    if he does not exercise reasonable care after he has had
    notice of the need of repairs. In any case his obligation is
    only one of reasonable care.
    See, also, Gehrke v. General Theatre Corp., supra; Reicheneker
    v. Seward, supra; Zuroski v. Estate of Strickland, supra; Quist
    v. 
    Duda, supra
    .
    As noted above, paragraph 20 of the Lease between the
    parties provided that “[m]ajor maintenance and repair of the
    leased premises, not due to Lessee’s misuse, waste, or neglect
    or that of his employee, family, agent, or visitor, shall be
    the responsibility of Lessor or his assigns.” Thus, McDowall
    contracted to make major repairs under the Lease. Further,
    the record contains some evidence that McDowall made addi-
    tional oral promises to Benard regarding future repairs on
    the Property. According to Benard’s testimony, during her
    visits with a McDowall representative to tour the Property,
    the representative indicated that he “was still working on the
    house” and “still had to fix stuff on the house,” from which
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    we infer McDowall’s intention to make repairs consistent with
    the Lease.
    [13] “The word ‘repair’ means to restore to a sound or good
    state after decay, injury, dilapidation, or partial destruction.”
    Zuroski v. Estate of 
    Strickland, 176 Neb. at 634
    , 126 N.W.2d at
    890. McDowall does not contest that the work required to lift
    and support the exterior concrete step and landing is a major
    repair to the property and that major repairs are covered in
    paragraph 20 of the Lease.
    In the underlying complaint, Bernard pled, inter alia, theo-
    ries of negligence based on McDowall’s alleged failure to
    repair and maintain the steps. We consider the evidence regard-
    ing initial repairs first. Through the Planning Department’s
    2011 notice, Benard’s evidence showed that the step was in
    need of repair at that time. And the affidavit from the hous-
    ing code inspector from the Planning Department stated that
    in 2013, he “found that the previous violations noted in the
    March 2011 inspection, including the sunken front steps, had
    not been remedied, and that the property had been unlawfully
    occupied.” Benard also testified that the step was problematic
    throughout her tenancy.
    But the record is disputed regarding whether the steps were
    repaired, and if so, whether the repairs were made before
    or during Benard’s occupancy. Paragraph 9 of the Lease
    provides that the tenant has “examined the demised prem-
    ises, including the grounds and all buildings and improve-
    ments, and that they are, at the time of the lease, in good
    order, repair, and a safe, clean, and tenantable condition.”
    The deposition testimony by a representative of McDowall
    claimed that he repaired the step by raising it up and packing
    additional dirt and sand underneath prior to Benard’s tenancy,
    which he claims was done to remedy the housing code viola-
    tion in 2011. As noted, the Section 8 inspection approved of
    the condition of the steps. In contrast, Benard’s testimony
    indicated that repairs, if made, were not effective during
    her tenancy.
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    In addition to the issue of whether McDowall exercised rea-
    sonable care after it had notice of the initial need of repairs,
    there is the further issue of whether McDowall had notice of
    any worsening of the step or landing triggering its obligation
    under the Lease to maintain the steps. Even if McDowall
    performed repairs to the steps at some point, the record
    contains additional issues of fact as to whether the repairs
    were initially effective at eliminating unreasonable danger and
    whether McDowall was aware thereafter of the worsening of
    the condition. To this question, Benard testified that a repre-
    sentative of McDowall routinely observed her negotiating the
    steps in a cautious way when she met the representative in
    front of the Property to pay her rent. Thus, if McDowall was
    aware of the worsening or further settling, there is a question
    of whether it exercised reasonable care after it had such notice
    of the need of additional repairs. In sum, there are material
    questions of fact regarding whether McDowall breached its
    obligations to Benard. As such, McDowall failed to carry its
    burden to show it was entitled to judgment as a matter of law.
    The district court erred when it granted summary judgment
    in favor of McDowall on the theory of McDowall’s failure
    to repair.
    Contributory Negligence
    For completeness, we note that Benard seems to contend on
    appeal that the district court erred by basing its decision on
    her alleged contributory negligence. Because we do not read
    the district court’s order as suggested by Benard, we reject
    this argument.
    Heins v. Webster County
    On appeal, Benard claims that the district court erred
    because it neglected to decide whether there was a material
    issue of fact as to whether McDowall’s conduct was willful or
    wanton. Benard cites our decision in Heins v. Webster County,
    
    250 Neb. 750
    , 
    552 N.W.2d 51
    (1996). Even reading Benard’s
    complaint liberally, she alleges only negligence and the issue
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    of willful and wanton conduct was not properly before the
    district court on summary judgment. Further, Benard’s reli-
    ance on Heins is not appropriate, because our holding did
    not abolish the relationship between a landlord and tenant;
    in Heins, we abolished the distinction between invitees and
    licensees. See Warner v. Simmons, 
    288 Neb. 472
    , 
    849 N.W.2d 475
    (2014). Benard’s argument is without merit. We reject
    this argument.
    CONCLUSION
    Because the undisputed evidence shows that Benard knew
    or had reason to know of the dangerous condition of the steps
    and the risk involved, it was not unreasonable for McDowall
    not to warn Benard of the defective steps. McDowall was enti-
    tled to judgment on Benard’s theory based on failure to warn.
    However, genuine issues of material fact preclude an award
    of summary judgment in favor of McDowall on Benard’s
    theory that McDowall failed to exercise reasonable care to
    maintain and repair the Property where McDowall had con-
    tracted to perform major repairs under the Lease. Accordingly,
    the district court’s order of July 13, 2017, is affirmed in
    part and in part reversed, and the cause is remanded for fur-
    ther proceedings.
    A ffirmed in part, and in part reversed and
    remanded for further proceedings.
    Wright, J., not participating in the decision.